what it is, and isn’t

In a pretty regular cadence certain topics rise to the top of the popular culture conversation. One such topic is “Free Speech.” Usually, it comes up because someone acts in a way that violates the terms and conditions of a website and their actions get them booted. Rather than accepting they broke their contractual obligation to adhere to the terms they begin complaining about how their Constitutional Rights are being violated. They while about how censorship is illegal. They complain that their Free Speech is being restricted.

Most of the minions will go along with these incorrect beliefs throwing their support behind the person who feels wronged.

Every once in a while someone will point out though that, in fact, the website that kicked the person off has done nothing wrong at all. I recently read one that began to do a pretty good job at explaining, “The 1st Amendment does NOT protect you from being banned or censored by Facebook or any other private company. Its intention is to protect you from government censorship.” Then it goes off on a tirade about FCC overreach and a short missive about government collusion and some other unsubstianted but politically motivated tangents before returning to a short explanation of site terms being a contract and how breaching the contract voids the obligation of the site to allow you access. It closes with, “Should private companies encourage free speech and differing ideas? Yes, absolutely. Do they have a legal obligation to let anyone say and do whatever they want? Absolutely not.”

Upfront, I will say, I am not a Constitutional lawyer, but this is a half ass explanation that glosses over some underlying yet important points. In order to effectively draw a contrast between the alluded to private censorship scenario and the First’s Free Speech clause itself one must actually know what the First does and does’t do. Then, you explain the subtleties of contract law and how they apply instead in this particular situation. Maybe after, you can have a philosophical discussion on if there should be any encouragement under any circumstance of completely unabridged differing ideas to answer the final questions.

I believe I generally will differ from the author about the philosophical portion of the conversation and that’s fine, because it isn’t what this post is about anyhow. The legal framework is though, especially when it comes to the use of the phrase “Free Speech.”

As many religious crusaders love to point out about the phrase “separation of church and state” not appearing in the Constitution, I’ll begin with noting neither does the phrase “Free Speech.” Both were born out of a larger contextual reading of the US Constitution, and that’s fine, this is just getting the technicality out of the way up front.

Misunderstanding of the Amendment’s Clause relating to speech, or any written work for that matter, is first and foremost a basic reading comprehension problem stemming from a lack of elementary school educational standards by which understanding what is written is lost on most people.

Additionally, a lack of civics in upper elementary education which would have provided some important contextual necessities for correctly interpreting the Amendment and having understanding that the text in-and-of itself is incomplete, like all aspects of the Constitution, without the accompanying Court Decisions as well as legislative and regulatory law that underpins it. One doesn’t need to be a Constitutional lawyer to get to a reasonable understanding of what the Amendment means at this point for everyday purposes.

The unabridged copy of the amendment is as follows, since the above post failed to actually quote it:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Removing the extraneous clauses from the text makes focusing on the key point here easier to follow:

Congress shall make no law respecting abridging the freedom of speech.

A couple of notes here:

First and hopefully at this point most obvious, this is a discussion of the Free Speech clause, not the Freedom of the Press clause. Or, the Redress Clause. Or, the Assembly Clause. Or either facet of the Religion Clauses. They are completely different sets of rights and responsibilities. Don’t intertwine them or any of the other clauses within the conversation about speech otherwise things will just get confusing along divergent tangents.

Second, structurally the clause has two key parts here: Who it applies to and what actions it applies to.

It originally applied to Congress in terms of enacting legislation at a Federal level. Nothing more.

The Supreme Court has further refined the who in Gitlow v. New York (1925) where it confirmed the application of the 1st from the Federal Congressional Legislation to States laws. Several subsequent cases throughout the late 20s and early 30s continued to strengthen this extension so that is generally accepted that the Free Speech clause applies to all Civil Law making bodies in all ways they create law.

Thus, the who is expanded to Local Jurisdiction Laws (such as county and city level governments) as well as regulatory law created through Executive Branches at any level of government, even though there may not be strong underlying casework supporting specifically all of these examples. It does not, however, impact Common Law making bodies like the Judicial Branch, which allows then for continued interpretation of the 1st’s principles.

Important to note, the rights and responsibilities underlying the clause have never been expanded to go beyond this interpretation of both “government” and “law making.” This means private entities engaging in abridgment are well within their abilities since they are effectively neither “government” nor attempting to enforce a “law.” For example, contracts may include a provision abridging speech of one or both of the signatories. If there is a dispute about the speech abridgment, just like a dispute about any portion of the contract, the government (likely the judiciary) is acting as an arbitrator to the contract between the two parties and not giving rise to the contract’s contents to become law itself. Like all contract content through, the speech abridging clause of the contract must in-and-of itself be legal. In this case so long as the abridgment doesn’t run afoul to other non-speech related laws the abridgment remains valid as long as the contract is in force.

An example might be a generally worded contract restriction the use of a list of specific words would be allowed. However, when the contract treats two members of the protected classes differently, such as men can use the words but women cannot, the abridgment of speech likely would not be allowed not because of the 1st Amendment because it is violation of anti-discrimination laws. The anti-discrimination laws being applied to the contract’s terms are allowed in part because of the 14th, therefore, the government’s involvement skirts the First completely.

The courts upheld this delineation between government actions and those private entities, such as people and corporations, in the past in other questions of law, however, no case I know exists specifically regarding the application of the Free Speech clause in the 1st to a private entity. Chances are, there won’t be anytime soon either due to the legally accepted notion the Amendment as a whole only applies to Government’s ability to make law based on the reading of the original text and the case law presidents involving the legal definition of the words in the text.

In order to change the 1st restrictions on “government” and “making laws” to include Judiciary Opinions interpreting law that when adhered to might rise to a form of abridgement or that of Private Citizens engaging in abridging acts it would require either an Amendment stating as such, or less likely a series of Court Cases establishing it.

Third, the Constitution doesn’t provide a legal definition of what is “Speech.” It relies on a pre existing notion of a definition. The assumption by non-law people is this definition is that of a secular term you might find in the dictionary, but this is not and never has been the case.

The US Judicial System is bound to the Common Law precedence system so there are pre-Constitutional practices in place regarding the legal definition of speech many of which are the underpinnings of decisions by the court to either expand the general rights associated to speech or curb speech. Thus, the actual speech being referenced is not that of the dictionary definition but that of a legal one.

It could be said, as well, that “Free” is actually a misnomer in this case as well. The secular definition of “free” and the legal ramifications of what “freedom” actually is are definitely different. Furthermore, the secular and legal definitions of “abridge” are likely not in alignment either. This generally causes a great deal of confusion as the legal meaning of the word “freedom” itself has changed over time, some of which is explained over the course of not only the 1st’s “speech” related court cases but by that of the overall body of Constitutional Law.

Forth: Free Speech is not a blanket right in-and-of itself. Only the ability for speech not to be hindered by the government is granted. And, even that isn’t absolute according to the Constitution when regarded as an entire work.

For example: Copyright (and Patent) could be interpreted as running afoul of the First’s Free Speech clause except owing to Copyrights and Patents are enshrined in the Constitution as well (Article 1, Section 8). By securing a copyright or patent the government is sanctioning a form of censorship by granting one person a form of speech while at the same time restricting another person from it. The conflict represents one example of legally acceptable restriction of speech – one where the concept is enshrined in the Constitution but like everything else is reliant on outside sources to define what the right actually entails since Copyright Law is defined in Title 17 of the United States Code in much more detail than the Constitutional clause granting it entails.

Also, the interpretation of the Free Speech clause is necessarily affected by the layering of other Amendments. Using Gitlow v. New York (1925) again, for example, the 14th’s “Equal Protection” and “Due Process” clauses were used in defining the interpretation of the 1st.

Furthermore, when applying the underpinnings of Common Law as well as the overarching Constitutional Framework to the interpretation of legislation and regulation to the first, the Courts have numerous times granted exceptions to the notion of abridging speech in some way through laws either legislated or executively regulated. Defamation and libel is allowed to be regulated according to New York Times Co. v. Sullivan (1964) and subsequent cases (all of which were clarifying existing Common Law allowances for speech abridgment), Commercial speech is allowed to be restricted according to Valentine v. Chrestensen (1942) and subsequent cases like Central Hudson Gas & Electric Corp. v. Public Service Commission (1980) (also clarifying exiting Common Law allowances), Obscenity regulations are allowed through cases like Rosen v. United States (1896) and running up through Miller v. California (1973) as well as a series of child porn cases and even laws having to do with restrictions of certain types of speech for general safety are allowed.

However, the Court has also provided ample opportunity to widen the scope of what the 1st actually entails as well. Getting back to Gitlow v. New York (1925) one last time, that was an example, through the notion of ‘Incorporation’ where the power of the 1st was expanded from the Federal Level to that of the States thus widening the definition of Speech and abridgment. Tinker v. Des Moines Independent Community School District (1969) expanded the definition to include students not just adults as was previously. And, Pruneyard Shopping Center v. Robins allows local jurisdictions, such as the States, to extend the rights even further than the accepted Constitutional definitions should they so chose (only to extend, never to abridge). This is to name but a few outside of the political speech expansions.

Thus, the 1st in-and-of itself is not etched in stone because the legal framework that defines the words in it has not and never will be etched in stone themselves.

Fifth and final point specific to the post in question … Sorry, but only Court Opinions are legally fact, not personal ones. Throwing unsubstantiated opinions into the post such as the line about “FCC overreach” actually is counter productive to the post itself. It offers a divergent path away from the core question on if the First applies to Private Entities and how the Constitution compares and contrasts to contractual obligations and becomes a critique of Government regulation. If you want to have a conversation about the specifics of particular regulations that’s a different topic that should be relegated to a separate post.

However, until the Court determines otherwise, and they’ve had ample opportunity to, the FCC’s regulation isn’t overreach at all but protected restrictions or allowed amplifications on speech and nothing more. You might not personally agree with the FCC regulations but agreement with and legal validity of are not the same. If you want to change or challenge a specific regulation you can petition the FCC for a change directly using the “Redress clause” of the 1st to your advantage. Similarly, you can petition the executive branch to change the charter of the FCC’s regulatory powers regarding said regulation. You can petition the legislature to enact a law that addresses situation the regulation creates. Or, in a less tactful way, you can petition for the defunding of the FCC itself since the legislature controls the budget. You can challenge the regulation through the judiciary which will consider the merits of the regulation against the Constitutional principle you feel violated (I’m assuming here it’s the 1st but who knows, the post wasn’t specific).

In conclusion, the basic premise remains – generally, the protections of the Free Speech clause in the first are only applicable in the realm of the enacting of legislation or regulation specifically restricting the established legal definition speech and not that of private entities abilities to enact expansions or restrictions, contractual or otherwise, when acting outside of the publicly governed sphere.

Sadly, this isn’t just a problem with people’s ability to understand the Free Speech clause of the first, it permeates almost all Constitutional discussion across the entirety of the 1s’s six clauses, the understanding of the 2n’s two clauses, the 14thd and even the affects of the Preamble – to name but a few.


About thedoormouse

I am I. That’s all that i am. my little mousehole in cyberspace of fiction, recipes, sacrasm, op-ed on music, sports, and other notations both grand and tiny: https://thedmouse.wordpress.com/about-thedmouse/
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